2016-19 at the Bar: Opportunities, Risks, and the Role of the Regulator

Sir Andrew Burns
KCMG

Chair of the Bar Standards
Board

Tuesday 12 April
2016

Good evening.

We have been thinking hard recently about what is likely to
happen at the Bar over the next three years -the opportunities and
the risks- and consequently what therole of the BSBshould be as the
regulator.

Now we possess neither a time machine nor a reliable crystal
ball, so it is hard to speak with certainty. But I must say that,
as a relative new-comer to this legal world, I am mightily relieved
that I have at last a coherent picture to offer you -an Outlook and
a Strategy- for what we think the future holds and how we propose
to go about our work in the coming years.

This is the fourth three-year strategy we have published since
the BSB came into being, but it is the first time we have rooted
our strategy in a thorough examination of the risk environment of
the Bar in England and Wales. I will talk about Strategy. But let
me address up front those who suggest we are scare-mongering or
negligently damaging the Bar's brand by identifying future
risks.

Looking ahead to consider what MIGHT happen in the future is a
fundamental aspect of being a regulator.

We need to consider trends within the market we regulate,
because we need to anticipate future developments in order to make
sure that our rules and regulatory actions enable the market to
operate fairly. You may be sure that other regulators in the field
are doing this anyway too.

Like all regulators, we act first and foremost in the public
interest. So, our emphasis is always on what we need to do to
enable the public - in our case, the consumers of legal services -
to access consistently high-quality services provided by
barristers.

Sometimes the interests of service consumers align with those of
service providers. In fact usually they do. But not
always.

And across the wide range of the BSB's supervision, enforcement
and training work we pick up evidence of what is happening in the
field which we monitor, analyse and investigate in fulfilment of
our regulatory duties.

We will talk a lot about "risks" tonight. But, I hope that
we can balance that by talking a lot about "opportunities" too.
After all in a regulatory context risk is another word for
uncertainty. And not all uncertainties are either bad or
resolvable.

We have a statutory duty to operate in a "risk-based" way. This
means we have to consider what MIGHT go wrong in the future. That
doesn't mean to say that it definitely WILL go wrong - or even that
we THINK it will go wrong. It's just that we have a regulatory
responsibility to make sure we do everything we can to prevent it
going wrong, or if it does, to limit the impact.

This is not rocket science. Organisations up and down the
country keep a weather eye on risk. Gauging the impact. Judging the
likelihood. And coming up with mitigation strategies.

For example the likelihood of unethical behaviour is low. But
the impact could be high. So even if we currently see no evidence
of widespread wrongdoing, this is an area against which we must
remain on guard.

And many things will go right in the future, or at least offer
practitioners a real chance to explore new paths. Barristers have a
keen sense of public duty and take great pride in what they do. So
we do not have a negative view of the future. Not at all.

I am enormously impressed by the talent and conscientiousness of
Barristers in England and Wales, and their public service
commitment. I am very positive about the future. Positive that the
Bar has the skills and the will to adapt to the challenges that if
faces at the moment, and that it is sure to continue to face during
the three years we are considering this evening.

As I say, the title of this evening's event is deliberate. It is
as much about "opportunity" as it is about "risk".

As we explain in our new Strategic Plan there is a huge amount
of regulatory business as usual ahead of us. And we are still
finishing off work set in motion by my predecessor, Ruth Deech,
three years ago. But there are fresh challenges and uncertainties
coming over the horizon. I hope you will help us this evening to
sharpen our focus and ensure we are not missing anything
serious.

The Bar faces competing challenges from a wide variety of
sources. These include commercial pressures from a wide range of
regulated - and unregulated - providers, dealing with the ongoing
effects of cuts to legal aid, and preparing to adapt to proposed
technological changes to the court system.

We know that there will be continuing pressure to reduce the
costs of regulation and we await the results of the current study
of legal services by the Competition and Markets Authority which
may have an impact on the way legal services are provided.

Moreover you will be aware that, at the moment, there is
considerable uncertainty about what the regulatory landscape for
legal services will look like in the future. Under encouragement
from the Treasury and BIS, the Ministry of Justice are about to
issue a consultation paper about the current framework of
regulation set out in the Legal Services Act of 2007, particularly
as it affects the separation of regulatory and representative
functions.

All this means that we are launching our new Strategic Plan in a
time of flux.

We are not ourselves advocating radical change. A strong
regulator which understands the barrister profession, and its
critical role in the way justice is administered in England and
Wales, but which at the same time keeps an eagle eye open for the
public interest, seems to me incontestably valuable. The 2007 Legal
Services Act set out a wholly viable way of doing this

If further changes to the regulatory framework are proposed, we
shall be happy to debate the pros and cons. There will always be
room for improvement.

However, the need for the Bar to have strong, effective and
sustainable regulation will remain. In fact, we think it will
become even more important than it is today.

And, whatever the many challenges facing the Bar at the moment,
the Bar itself will still be here in three years' time.

For the sake of the public that both we and the Bar serve, we
want it to thrive and continue to stand proudly as a model for the
rest of the world. A model for how to deliver justice for
everybody, effectively, through advocacy standards of reliably
high-quality

So, the approach that we took when developing our Strategic Plan
for 2016-19, was to consider what was necessary for the future of
regulation at the Bar.

The new Plan builds upon the BSB's progress over the last three
years. Achievements during the lifetime of the previous plan have
included the publication of the BSB Handbook in 2014, the
introduction of a risk-based approach to supervision and
enforcement, and the licensing of new legal businesses specialising
in advocacy: known as "entities".

In the latest plan, we start by setting out the context and
regulatory landscape in which we will be operating over the next
three years. We describe what we want to achieve, and identify
three key strategic aims.

We do all of this with reference to our statutory regulatory
objectives. These underpin everything that we do.

Our Strategic Plan contains three strategic aims. These are:

1. Regulating in the public interest

We want to help the public better understand the fast-changing
and complex market for legal services, so that users of those
services can make informed choices and have a better understanding
of their legal rights and duties as citizens.

2. Supporting those we regulate to face
the future

We will assist the Bar in preserving its professional identity
for the benefit of the public. This is particularly necessary where
unregulated competition is being felt in areas of barristers' work.
For example, the public needs to understand the difference between
a fully qualified, regulated and insured barrister and a "McKenzie
Friend" - whether paid or unpaid. We will help the profession to
work more closely with solicitors and other legal professionals
where that may offer advantages to the public.

We will ensure regulation does not pose unnecessary barriers to
entering the market. Legal education and training will be
reformed to support the barristers of the future.

3. A strong and sustainable regulator

We will continue to position ourselves as the regulator of legal
services which have advocacy, specialist legal advice and
litigation at their core. There is a distinct public interest in us
doing this because of the close relationship between those
activities and the upholding of the rule of law and access to
justice.

One of the challenges that we face is to deliver these strategic
aims in a way that ensures value for money.

Our overall budget - which includes the central resources that
we share with the Bar Council - is also down in 2016-17.

We also make a commitment in our Strategic Plan to hold our
level of expenditure on direct operating costs at the 2016-17 level
over the duration of this plan.

We also publish annual Business Plans. Our plan for 2016-17 was
published simultaneously with the Strategic Plan.

The Business Plan provides a greater level of detail about our
proposed activity during the year in question. It includes more
information about our everyday "business as usual" activity as a
regulator.

We don't intend to discuss the 2016-17 Business Plan any further
tonight, but you can download a copy of this from our website.

What we do intend to discuss in more detail tonight, is our Risk
Outlook.

This is an important document - equal in importance to the
Strategic Plan - because it is where we have summarised all of the
evidence we have collated about the market, and where we outline
what we consider to be the biggest risks to the delivery of the
regulatory objectives.